A recent case decision (Polito v. Briarlane Property Management Inc., 2019 HRTO 708) from the Human Rights Tribunal of Ontario (the “Tribunal”) focused on the obligation to accommodate disabled residents.
In October of 2016 a disabled resident requested that automatic door openers be installed at the building front entrance to allow him to easily enter the building while using his scooter, walker or cane. The resident’s initial request and a subsequent request by the resident’s lawyer were ignored. After several undertakings by building management to install the automatic openers by March, 2017 and then August, 2017, this did not happen. In September, 2017 an engineering report submitted to the building owners concluded that it was not possible to install automatic openers in compliance with the Ontario Building Code as the doors would be opening onto a narrow sidewalk and potentially could push people onto the road. However, this report was not provided to the resident. In December of 2017, automatic door openers were installed at the rear entrance to the building. A buzzer, additional lighting and planters were also installed at the rear entrance to make it safer and more inviting.
The resident commenced an application before the Tribunal claiming that he had been discriminated against because of his disability and that the installation of automatic door openers at the rear of the building did not constitute reasonable accommodation. The resident claimed that being forced to use the rear entrance was embarrassing and an injury to his dignity as other residents were entitled to use the front door.
The Tribunal acknowledged that there is a “duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public”. However, the Tribunal noted that this duty is subject to the principle of reasonable accommodation to the point of undue hardship. This means that an accommodation seeker is not entitled to a “solution of his choice or a perfect solution” – just reasonable accommodation. The Tribunal concluded that after determining that the installation of automatic openers at the front entrance of the building was not feasible, the installation of automatic openers at the rear entrance was a reasonable solution and that the building owners had discharged their duty to accommodate the resident.
However, the Tribunal determined that the building owners failed to discharge the procedural component of the duty to accommodate as they had failed to deal with the resident’s accommodation request with “due diligence and dispatch”. In all it took about 15 months from the time that the resident moved into the building to make an entrance to the building accessible. Consequently, the Tribunal ordered the building owners to pay the resident the sum of $10,000 in general damages as compensation for injury to dignity, feelings and self-respect.
This case should serve as a warning to all condominium corporations that receive a request to accommodate a disabled resident. Not only must the corporation assess the request and all accommodation options open to it, it must do so promptly and within a reasonable time period after the request has been made. Even if the corporation ultimately does take measures to accommodate the disability, it could be found to have breached the procedural duty to accommodate if the request has not been dealt with in a timely manner.